C-13/01

SAFALERO

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 20 March 2003 1

I — Introductory remarks 13 December 1995 establishing a pro- cedure for the exchange of information on national measures derogating from the principle of the free movement of goods 1. These proceedings are concerned with within the Community (hereinafter: ascertaining whether a specific national law Decision No 3052/95). 3 complies with the principles of propor- tionality, effectiveness and adequate judi- cial protection of the rights conferred on individuals, which are laid down in the Treaty and developed in the case-law of the Court of Justice. 1. Directive 1999/5

II — Relevant legislation 3. The aim of Directive 1999/5 as defined in Article 1 thereof is to establish a regulatory framework for the placing on the market, free movement and putting into service in the Community of radio equip- A — Community law ment and telecommunications terminal equipment.

2. Legislation relevant in this case includes Directive 1999/5/EC of the European Par- liament and of the Council of 9 March 1999 on radio equipment and telecom- munications terminal equipment and the 4. Article 2(c) defines radio equipment as 'a mutual recognition of their conformity product, or relevant component thereof, (hereinafter: Directive 1999/5) 2 and capable of communication by means of the Decision No 3052/95/EC of the European emission and/or reception of radio waves Parliament and of the Council of utilising the spectrum allocated to terres- trial/space radiocommunication'.

1 — Original language: German. 2 — OJ1999 L 91, p. 10. 3 — OJ1995 L 321, p. 1.

'Member States shall ensure that apparatus is placed on the market only if it complies with the appropriate essential requirements identified in Article 3 and the other relevant '1. Member States shall allow the putting provisions of this Directive when it is into service of apparatus for its intended properly installed and maintained and used purpose where it complies with the appro- for its intended purpose. It shall not be priate essential requirements identified in subject to further national provisions in Article 3 and the other relevant provisions respect of placing on the market.' of this Directive.

I - 8682

SAFALERO

2. Notwithstanding paragraph 1, and with- measures in its territory to withdraw the out prejudice to conditions attached to apparatus from the market or from service, authorisations for the provision of the prohibit its placing on the market or service concerned in conformity with Com- putting into service or restrict its free munity law, Member States may restrict the movement.' putting into service of radio equipment only for reasons related to the effective and appropriate use of the radio spectrum, avoidance of harmful interference or matters relating to public health.' 12. Under Article 12 of Directive 1999/5 apparatus complying with all relevant essential requirements is to bear the CE conformity marking referred to in Annex VII.

10. Article 8(1) reads:

13. Article 19(1) provides:

OPINION OF MRS STIX-HACKL — CASE C-13/01

the market of a particular model or type of Member States so authorised, with the product lawfully produced or marketed in exception of judicial decisions. another Member State, it shall notify the Commission accordingly where the direct or indirect effect of the measure is:

Where a particular model or type of product is the subject of several measures, adopted under identical substantive con- — a general ban on the goods, ditions and procedures, only the first of those measures shall be subject to the notification requirement.

— a refusal to allow the goods to be placed on the market, 2. Article 1 shall not apply to:

— the modification of the model or type — measures taken solely in pursuance of of product concerned before it can be Community harmonisation measures, placed or kept on the market, or

— measures notified to the Commission — withdrawal of the goods from the under specific provisions, market.'

— measures relating to second-hand goods which, with time or use, have become unsuitable for being placed or 17. Article 398 provides: kept on the market.

3. The initiation of proceedings for judicial 'It is prohibited to build or import into the review of such a main measure shall under national territory for commercial purposes, no circumstances result in suspension of the or to use or operate in any capacity application of Article 1.' electrical or radio-electrical equipment or systems or electricity transmission lines which do not comply with the standards laid down for the prevention and elimin- ation of interference with the transmission and reception of radio signals.

B — National law

16. The essential provisions of Italian law Those standards, which shall also govern are contained in the Codice Postale estab- the conformity assessment procedure, shall lished by Presidential Decree No 156 of be enacted by way of decree of the Minister 29 March 1973 ('the Postal Regulations'; for Post and Telecommunications, acting hereinafter: Codice Postale) 4 and in Law together with the Minister for Industry, No 689 of 24 November 1981 concerning Trade and Handicraft, in accordance with the directives of the European Community. 4 — Decreto del Presidente della Repubblica DPR, Codice Postale, GURI Supplemento Ordinario No 113, 3 May 1973. 5 — GURI S.O. No 329, 30 November 1981.

I - 8685

OPINION OF MRS STIX-HACKL — CASE C-13/01

20. Articles 18 to 23 of Law No 689/81 lay down the procedural rules governing inves- tigations, penalties and legal remedies. 23. The Italian Republic failed to transpose Directive 1999/5 within the period pre- 6 — GURI No 226, 20 August 1977. scribed. However, in May 2000 the Minis- 7 — CURI No 274, 22 November 1996. try of Communications published a circular

I-8686

SAFALERO

which provides that, for the purposes of appealed against that measure to the Pre- placing on the market and putting into fetto di Genova (Genoa Prefect). However, service, the services [of the Ministry of on 26 April 2000 the Prefetto imposed an Communications] have to comply with the administrative fine of ITL 30 000 on Vitale provisions of Directive 1999/5. and ordered that the goods be confiscated and destroyed. Vitale has not taken any action against those measures.

I - 8687

OPINION OF MRS STIX-HACKL — CASE C-13/01

IV — Questions referred for a preliminary by the administrative authorities is ruling not allowed to institute court pro- ceedings where the measure itself is addressed to other persons;

29. Reference has been made to the Court of Justice of the European Communities by order of the Giudice di Pace di Genova, of 4 January 2001, registered at the Court on 11 January 2001, for a preliminary ruling in the dispute between Safalero and Pre- fetto di Genova on the following questions: — a person directly and individually concerned by a measure adopted by the administrative authorities and addressed to other persons is not allowed to participate, even as a voluntary intervener, in opposi- '(1) Are the rules on procedure and on tion proceedings brought against sanctions for administrative offences such a measure; laid down by Law No 689 of 24 November 1981 compatible with the principles of proportionality, effec- tiveness and adequate legal protection of the rights conferred by Community law on individuals, laid down in the Treaty and/or set out and defined in the case-law of the Court of Justice, where: — provision is made, with no possi- bility for a court to make a dif- ferent and discretionary assess- ment, for the additional penalty of confiscation of the goods where the offence is purely adminis- — the offender cannot institute court trative, the main penalty being proceedings against a measure pecuniary and involving payment authorising seizure adopted by the of a sum of money which may be administrative authorities until the quite modest? administrative authorities them- selves, without being constrained to observe procedural time-limits, have applied to the courts for an interim order or a confiscation order; (2) Do Articles 10 and 249 of the Treaty preclude Member States from adopting measures contrary to Directive 1999/5/EC of the European Parliament — a person directly and individually and of the Council of 9 March 1999 on concerned by a measure adopted radio equipment and telecommuni-

If the answer to this question is in the affirmative, what is the meaning of the Community concept of "measure liable 32. The Italian Government considers the seriously to compromise the result pre- question(s) referred to be inadmissible in scribed by the directive"?' that it does not/they do not refer to any specific secondary Community legislation requiring interpretation by the national court.

V — Assessment of the questions referred for a preliminary ruling 33. The matter of the lawfulness of the measure authorising seizure arose, in its view, in the context of different proceed- ings, namely those involving Vitale and not those which have led to the current pro- 30. By letter of 20 June 2002, the Court of ceedings for a preliminary ruling. Were the Justice asked the referring court if it still Court to hold that the offender may inter- intended to pursue the questions it had vene in the court proceedings, the referring referred in the light of the judgment in court would have no power to influence the Radiosistemi. 8 measure authorising seizure and the judg- ment delivered by the Court of Justice would have no repercussions on any of the 8 — Joined Cases C-388/00 and C-429/00 [2002] ECR I-5845. pending proceedings.

I - 8689

OPINION OF MRS STIX-HACKL — CASE C-13/01

34. The French Government takes the view 37. In the present case it is necessary to that only the second indent of the first examine whether it is quite obvious that the question referred is actually admissible interpretation of Community law sought by because the other indents of the question the referring court bears no relation to the relate to hypothetical situations or only actual nature of the case or to the subject- concern Vitale. matter of the main action. 10

39. Since Vitale has not brought court 2. Assessment proceedings in this instance against the measure in question, proceedings in which Safalero could participate as a third party do not even exist. Whether or not such a right to participate is required by Commu- nity law is, therefore, a hypothetical ques- 36. According to the case-law of the Court, tion that the Court does not have to the Court may 'refuse to rule on a question answer. referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Commu- nity law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypotheti- cal, or where the Court does not have 40. The fourth indent of the first question before it the factual or legal material referred concerns the situation where provi- necessary to give a useful answer to the sion is made, without it being possible for a questions submitted to it'. 9 court to make a different and unfettered

9 — Case C-390/99 Canal Satélite Digital [2002] ECR I-607, 10 — See, for such circumstances, Case 126/80 Salonia [1981] paragraph 19, and Case C-379/98 PreussenElektra [2001] ECR 1563, paragraph 6, and order in Case C-286/88 ECR I-2099, paragraph 39. Falciola Angelo [1990] ECR I-191, paragraph 8 et seq.

I - 8690

SAFALERO

assessment, for the additional penalty of ciples of proportionality, effectiveness and confiscation of the goods in the event of a adequate judicial protection of the rights purely administrative infringement, the conferred by Community law on individ- main penalty for which is pecuniary and uals. involves payment of a relatively modest sum of money.

the Corte di Cassazione, are contrary to the 49. The view held by the French Govern- principle of effective legal protection. ment is that this case is different in several Article 20(4) of Law No 689/81 made aspects from the Radiosistemi case. Legal compulsory confiscation a general prin- protection, as it is afforded by Italian law, ciple. The seizure, let alone the confis- meets the requirements of Community law cation, of goods which, although meeting because various means of obtaining redress the required standards, still did not bear the were available to Safalero, enabling it to corresponding type-approval stamp was a follow through its claims. measure having equivalent effect for the purposes of Article 28 EC. In view of the insignificance of the infringement, those measures were disproportionate.

I - 8692

SAFALERO

52. The Commission's view is that the national provision which is contrary to provisions of Law No 689/81 also contra- Community law are consistent with Com- dict the principle of effective legal protec- munity law has already been resolved. tion inasmuch as a person directly con- Indeed, in accordance with the case-law cerned by a measure authorising seizure of the Court borne out in Radiosistemi, may not bring an action where the measure 'penalties, be they criminal or otherwise, adopted is addressed to other persons and, involving national restrictive measures thus, where the national legislation in force which have been recognised as being precludes the raising of an action by contrary to Community law are as incom- persons other than those directly concerned patible with Community law as the restric- by the measure in question. However, the tions themselves'. 12 principle of proportionality is irrelevant.

55. 'For this reason, a system of penalties 2. Assessment intended to ensure compliance with national provisions which are contrary to Community provisions must be held to be contrary to Community law, without there being any need to examine whether or not it meets the tests of non-discrimination and proportionality.' 13

prescribed for transposing the directive as 59. Account should additionally be taken well as afterwards as regards the non-har- of the following consistent case-law of the monised sphere, on the free movement of Court: 'However, in the absence of Com- goods. munity rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, pro- vided that such rules are not less favourable 57. The two indents of the question which than those governing similar domestic are admissible in this case each relate to actions (principle of equivalence) and that different circumstances in which there is no they do not render practically impossible or right of action under prevailing Italian law, excessively difficult the exercise of rights namely before an interim order or a con- conferred by Community law (principle of fiscation order has been issued (first effectiveness).' 15 indent), and where the measure adopted is addressed to other persons (second indent).

(a) First indent of the question

61. As the situation stands, the provisions provided by Community law to enjoy legal of Italian law which are relevant in the protection. It is therefore essential to define main proceedings, in particular Article 22 the scope of the group of persons entitled of Law No 689/81, demonstrate a special under Community law to bring an action in feature in that they do not provide for any administrative criminal proceedings. It form of adequate legal protection for the must, therefore, be ascertained whether person affected by the measure: they do legal protection is to be afforded only to not, for example, set a time-limit within the person to whom a penalty is directly which the competent authority has to give addressed or, additionally, to certain other notification of the interim order. It would, persons. furthermore, be necessary to ensure that the person concerned has a means of obtaining redress not merely against the measure authorising confiscation but also against the measure authorising seizure.

64. The concept of 'other persons' used in this context is inappropriate in so far as it is too broad and too imprecise. After all, it (b) Second indent of the question covers all those to whom the penalty is not directly addressed and does not make any specific distinction between different sets of circumstances. Any special feature char- acterising the situation of other persons is consequently disregarded.

on the principle that other persons do not, Undertakings which have had their goods in general, merit protection under Commu- seized are affected in reality by that meas- nity law. ure in terms of their position on the market concerned. Indeed, even the seizure, let alone the prospect of the goods being destroyed, has a deterrent effect on pur- chasers, that is to say on retailers. After a measure of that kind, such undertakings would probably only be able to sell a fraction, if any, of its goods. Added to that 66. Although Community law does not is the risk of being sued by retailers which require that means of legal protection must have already purchased such goods. be available to all other persons in proceed- ings brought against another person, a contradiction of the principle of effective legal protection none the less arises in that national law does not, in principle, provide for any means of legal redress for persons other than those against whom the action has been brought. Indeed, Community law in some circumstances requires that the 69. Secondly, from a legal viewpoint, rights of such other persons also be pro- Safalero is not, as it were, a bystander to tected. the action either. There is a contractual relationship between Safalero and Vitale, as well as contractual relationships with other retailers, indicating that Safalero is closely linked to the direct addressee of the penalty.

— the offender cannot institute court proceedings against a measure authorising seizure adopted by the administrative authorities until the administrative authorities themselves, without being constrained to observe procedural time-limits, have applied to the courts for a default summons or a confiscation order;

— a person concerned by a measure adopted by the administrative authorities who enjoys rights deriving from Community law cannot institute court proceedings where that measure is addressed to other persons.

I - 8697